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Commonwealth v. Unitt

Appeals Court of Massachusetts, Middlesex

February 28, 2017

PETER J. UNITT, THIRD (and six companion cases [1] ).

          Heard: December 7, 2016.

         Indictments found and returned in the Superior Court Department on September 23, 2010.

         A bail forfeiture proceeding was had before Sandra L. Hamlin, J.

          Dennis M. Toomey for Peter J.

          Unitt, III. James E. McCall for Lee Peck Unitt.

          Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.

          Present: Cypher, Maldonado, & Blake, JJ.

          BLAKE, J.

         The married defendants, Peter J. Unitt, III (Peter), and Lee Peck Unitt (Lee), jointly operated a law office in Woburn prior to their arraignment on numerous crimes related to the theft and embezzlement of their clients' funds.[2] Their adult children, Jade Unitt (Jade) and Peter Unitt, IV (Peter, IV), posted bail on their behalf.[3] Neither defendant defaulted, and each subsequently was convicted of a subset of the charged crimes. This appeal presents the question whether, where no default occurred, a judge of the Superior Court had the authority to order that the bail posted on the defendants' behalf be forfeited and applied toward the restitution they owed. Because we conclude that under the circumstances presented by this case, the judge did not have such authority, we reverse the order of forfeiture.


         On October 18, 2010, both Peter and Lee were arraigned on multiple indictments in the Superior Court, at which time bail was set at $50, 000 cash for each defendant. On December 9, 2010, Jade, the defendants' adult daughter, posted bail on behalf of Lee and was named as surety on the recognizance. On February 16, 2011, Peter, IV, the defendants' adult son, posted bail on behalf of Peter and was named as surety on the recognizance. Both recognizance forms, which are identical, warn the surety of the risk of forfeiting the money posted for bail if the defendant defaults, but list no other potential risks of forfeiture.

         Between their arraignments in 2010, and their convictions in 2013, each of the defendants appeared for court as required under the recognizances, thereby satisfying the conditions of their bail. In April of 2013, a jury convicted Lee of four counts of larceny and one count of embezzlement. Thereafter, the judge adjudicated her a common and notorious thief. On May 6, 2013, the judge sentenced her to consecutive terms of two years to two years and one day on the larceny convictions, ten years of probation to run from and after the committed sentences on the embezzlement conviction, and, for being a common and notorious thief, a twenty-year term of probation to run concurrent with the committed sentences. In July of 2013, Peter pleaded guilty[4] to one count of embezzlement by a fiduciary and was sentenced to two years in the house of correction, 120 days to serve, with the balance suspended for four years. The judge also ordered the defendants to pay restitution, jointly and severally, to three victims.[5]

         Over three dates in June and November, 2013, and January, 2014, the judge conducted hearings to determine whether the bail posted on behalf of Lee and Peter should be assigned to the probation department to be applied to the restitution order. Although no witnesses testified on those dates, [6] several documentary exhibits were admitted in evidence. Jade submitted an affidavit stating that the bail money was comprised of two loans, one from her mother's sister and one from her father's aunt. She also averred that "[n]either of the funds used to bail my parents out belong to my parents, myself, or my brother." The other documents included the recognizance forms, a letter from a victim's civil attorney as to the restitution amount still owed, a notarized letter from Peter's aunt (with attached bank statements and record of funds transferred) stating that the funds sent for Peter's bail were a loan to Jade, and Jade's bank statement indicating a $50, 000 deposit in Jade's account from a bank in Singapore.[7]

         On January 30, 2014, the judge issued a memorandum of decision finding that "the credible evidence is that the $50, 000 posted each by [Lee and Peter] were in effect loans which became the property of [Lee and Peter] with Jade Unitt serving as the conduit since her parents were in jail and unable to physically post the bail." In reaching her finding as to Lee, the judge acknowledged Jade's affidavit and the bank record showing a deposit from Singapore, but relied upon her memory of Lee's trial testimony[8] and the lack of affidavits from either Lee or her sister, in concluding that the loan was a sham. In so finding, the judge acknowledged that she did not have a transcript of the trial before her.[9] As for Peter's ...

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